People v. Menzies

• Decision Date: 10 June 1960
• Citation: 210 N.Y.S.2d 142,26 Misc.2d 1040
• Parties: PEOPLE of the State of New York v. Marshall M. MENZIES, Defendant.
• Court: New York County Court

Page 142

210 N.Y.S.2d 142

26 Misc.2d 1040

PEOPLE of the State of New York v. Marshall M. MENZIES, Defendant.

Oneida County Court.

June 10, 1960.

John M. Liddy, Dist. Atty., Utica (Arthur A. Darrigrand, Utica, of counsel), for the People.

John P. Gualtieri and Abraham H. Baker, Rome, for defendant.

JOHN J. WALSH, Judge.

The defendant stands indicted by the Grand Jury of the crime of criminal negligence in the operation of a motor vehicle in violation of Section 1053-a of the Penal Law. There are two counts to the indictment since as a result of this accident, both the defendant's wife and the wife of the driver of the other automobile involved died.

The allegations in each count are the same and allege that the defendant

'did operate and drive said motor vehicle * * * at a high rate of speed and did at said time and place, fail to keep said motor vehicle under control, and did cause said motor vehicle which was proceeding in a generally easterly direction to cross over to the left of the center of said highway and proceed along the northerly side of said highway, thereby causing said motor vehicle operated by said defendant, to collide with another vehicle.'

The accident occurred on the 11th day of July, 1959. The defendant's wife was pronounced dead on arrival at the hospital and the wife of the other driver involved died on July 24, 1959. Both the defendant and the other driver were so seriously hurt that it was impossible to obtain any statements until some time later.

On August 31, 1959, the driver of the other car, Mr. Conde gave a sworn statement to the effect that

'I was looking straight ahead at the time driving about 25 or 30 mph when I saw a car headed easterly come around from the top of this hill like a streak of lightning, I figure this car was doing between 80 and 90 miles a hour and suddenly came across the highway headed for my car, my wife screamed and I applied my brakes but before I could do anything more the other car struck may car practically head-on, turning my station wagon in a northeasterly direction as the other car left the road went onto the northerly shoulder ditch and embankment.'

On September 3, 1959, the defendant gave a sworn statement to the effect that

'as he was proceeding between the Griffs Air Force Base gate and the motel operated by Charles Corcoran, at a point about 1/4 to 1/2 mile easterly of the said Griffs Air Force Base gate there were extreme sharp flashes of lightning and a heavy downpour of rain; that in the midst of the flashes of lightning and the downpour of rain he suddenly saw a pair of headlights facing him and then there was a collision which knocked deponent unconscious.

'That at the time of the collision deponent had on his front headlights, his windshield wipers were working, and he was driving at a rate of speed of approximately 35 miles per hour.

'That at the point of the accident the roadway was wet, the visibility was poor, because of the extremely heavy downpour, and sharp flashes of lightning.'

On January 20, 1960, the Grand Jury returned an indictment. Thereafter defendant moved in the Supreme Court, Oneida County for an order granting defendant permission to inspect the grand jury minutes of the testimony upon which the indictment was found.

On June 10, 1960, Mr. Justice Hudson after examining the testimony before the Grand Jury and reviewing at length the judicial interpretation of Section 1053-a of the Penal Law, particularly the cases of People v. Gardner, 255 App.Div. 683, 8 N.Y.S.2d 917 and People v. Bearden, 290 N.Y. 478, 49 N.E.2d 785 in a memorandum opinion, reported in People v. Menzies, 24 Misc.2d 1033, 205 N.Y.S.2d 745, 748, concluded that,

'Under the above decisions, I believe that the defendant is justified in seeking to move to dismiss the indictment and should have permission to examine the Grand Jury minutes for the purpose of making such application.' On the 15th day of November, 1960, the defendant after examining the Grand Jury minutes pursuant to the order of the Supreme Court, moved before this Court to dismiss the indictment pending herein.

Although an application to inspect the Grand Jury minutes is not granted without good cause and in spite of the learned opinion of Mr. Justice Hudson that the defendant is justified in seeking to move to dismiss the indictment for insufficiency of evidence, the responsibility rests upon this Court. In accordance with that responsibility, we have examined the entire testimony before the Grand Jury and have arrived independently at the same conclusion based upon the testimony and the judicial interpretation of the appellate courts.

The Evidence

1. There was no evidence whatever that either driver had been drinking or was intoxicated. In fact, the only evidence is to the contrary. The deputy sheriff, Robert Money, who investigated the accident in response to questioning by a grand juror said:

'Q. When you investigated at the scene, was there any smell of liquor on any of the passengers or drivers? A. No, there wasn't.

'Q. Was either man drinking? A. No, I will say this, I couldn't smell any odor of alcoholic beverages.' Transcript, pages 26-27.

Richard Haley, the ambulance driver was asked the same question:

'Q. Did you observe any odor of alcohol in the car? A. No, I didn't.' Transcript, page 35.

2. The only testimony of excessive speed by the defendant was given by the operator of the other car, Mr. Conde:

'Q. Did you have the opportunity to judge the speed of his car? A. I would say 80 or 90 miles an hour.

'Q. You saw it how long before the crash? A. Maybe two or three seconds.

'Q. In other words, a very short time? A. Just like a bullet.' Transcript, pages 39-40.

The probative force and the sufficiency of such testimony will be discussed hereafter.

3. The only other evidence claimed to have a bearing on the question of negligence is not only remote and uncertain but it is equally consistent with the innocence of the defendant as it is with guilt, perhaps more so actually.

Two young ladies were witnesses before the grand jury as to an incident within the city of Rome at about 9:30 P.M. when they stopped for a red light at the intersection of East Dominick and Mill Street.

'Q. Will you tell us what happened? A. The light turned red, so I stopped for the light and all of a sudden I felt this thud and turned around and when I did, I saw a black sports car with a man and a woman in it that had tapped me in the rear and I just sat there stunned a little bit, and he backed out and came alongside me waiting for the light to turn and we both waited for the light to turn and while he was there there were some fellows of the corner and there were words back and forth and then the light turned and we both started up and I pulled to the curb, thinking he would do the same, but he kept on going, so I took his license number and got out of the car and went around my car and there was no damage, so I never reported it.

'Q. What was the license number? A. I think it's 8 MD 123.

'Q. Did you recognize the person driving the car? A. No, I didn't know who he was.

'Q. Can you tell us anything about the speed of the car that drove away? A. Well no, I couldn't. I just about got his license number.' Transcript, pages 8-9.

4. The sole survivor, other than the defendant gave this version of the accident to the Grand Jury:

'Q. When did you observe this car coming in the opposite direction? A. Well, maybe two seconds, three seconds, before the accident, I don't know, it was just like that. He was on top of the hill and I was * * * half way up the hill, I am going up and he was on my side and Esther says 'look at that car', and I blew my horn and put on the brakes and all he did do, like this, go on his side.

'Q. What do you mean? A. On his side of the road, not my side when I first saw him and I thought he was going straight.

'Q. Let me see if I follow you? You observed the lights, which side? A. On my side, right in front of me and then he just went over on his side of the road and I thought he was going by me, and it all happened a matter of seconds, and he come at me just like a bullet.

'Q. Was there sometime before the collision his car went back onto the south side or his right side of the road? A. Yes, just before he hit us.

'Q. Then he came back into your side? A. Right straight, bang, right in front of me.

'Q. What was the position of your car? A. It was still in my lane.' Transcript, pages 38-39.

This being the entire evidence before the Grand Jury on the question of culpable negligence, the next inquiry is whether or not such evidence was sufficient under Section 251 of the Code of Criminal Procedure which reads as follows:

'Degree of evidence, to warrant an indictment. The grand jury ought to find an indictment, when all the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury.' Two people died as a result of this accident. 'We must, however, consider the matter dispassionately as is the obligation imposed upon the court under our law. We must not decree guilt because of the tragic deaths. We would be less than candid were we not to admit being tempted to declare that this issue is one of fact, thereby placing the burden of determining the defendant's fate upon the jury. If that course were to be followed, under the circumstances, we would be evading our solemn obligation as a judge however difficult and soul-searching the task. * * *

'If, as we believe, a jury's verdict of conviction should be set aside on the basis of the People's case, we should not avoid a difficult and onerous duty by letting the case go to the jury in the expectation that their acquittal would spare us this task. Such an expediency would neither be in good conscience or good law.' People v. Fyfe, 1957, 6 Misc.2d 524, 166 N.Y.S.2d 976, 979.

The Law as to Culpable Negligence to be...